the same protection should be afforded to bonâ fide advances upon goods, as by the 6 Geo. IV. c. 94, s. 4, was given to sales; and much uncertainty having arisen on the construction of that act (see Phillips v. Huth, ante, p. 816), which, moreover, did not extend to protect exchanges of securities bonâ fide made (see Bonzi v. Stewart, ante, p. 817), it was enacted, by 5 & 6 Vict. c. 39, s. 1-That

Any agent who shall be intrusted with the possession of goods, or of the documents of title to goods, shall be deemed to be the owner of such goods and documents, so far as to give validity to any agreement by way of pledge, lien, or security bona fide made by any person with such agent, as well for any original loan, advance, or payment made upon the security of such goods or documents, as also for any further or continuing advance in respect thereof; and such agreement shall be binding upon the owner of such goods, and all other persons interested therein, notwithstanding the person claiming such pledge or lien may have had notice that the person with whom such agreement is made is only an agent. Furniture in a furnished house is not "goods" within the act. Wood v. Rowcliffe, 6 Hare, 191. The plaintiff, a manufacturer, consigned goods to C., his agent. C. being liable, together with the defendant, on a bill of exchange, obtained from him for 3007. for the purpose of taking up the bill, at the same time depositing with him the plaintiff's goods. In trover by the plaintiff for his goods, it was held, that, if the jury thought the transaction was only a circuitous mode of paying the bill, it was not a transaction within the statute. Learoyd v. Robinson, 12 M & W. 745.

By sect. 2 Where any such agreement for pledge, lien, or security shall be made in consideration of the delivery to such agent of any other goods or merchandize, or document of title or negotiable security, upon which the person so delivering up the same had at the time a valid lien and security in respect of a previous advance, by virtue of some agreement made with such agent, such agreement, if bonâ fide on the part of the person with whom the same is made, shall be deemed to be a contract made in consideration of an advance within the meaning of the act, and shall be as valid as if the consideration for the same had been a bonâ fide present advance of money: Provided, that the lien acquired under such last-mentioned agreement upon the goods or documents deposited in exchange shall not exceed the value at the time of the goods, which (or the documents of title to which, or the negotiable security which) shall be delivered up and exchanged. See Bonzi v. Stewart, ante, p. 817.

Sect. 3 provides,-"That this act shall give validity to such contracts and agreements only and to protect only such loans, advances, and exchanges as shall be made bona fide, and without notice that the agent making such contracts or agreements as aforesaid has not authority to make the same, or is acting malâ fide in

VOL. II.

K

respect thereof against the owner of such goods and merchandize; and nothing herein contained shall be construed to extend to or protect any lien or pledge for or in respect of any antecedent debt (0), owing from any agent to any person with or to whom such lien or pledge shall be given, nor to authorize any agent intrusted as aforesaid in deviating from any express orders or authority received from the owner; but that, for the purpose and to the intent of protecting all such bona fide loans, advances, and exchanges as aforesaid (although made with notice of such agent not being the owner, but without any notice of the agent's acting without authority), and to no further or other intent or purpose, such contract or agreement as aforesaid shall be binding on the owner and all other persons interested in such goods."

By sect. 4" Any bill of lading, India warrant, dock warrant, warehouse keeper's certificate, warrant or order for the delivery of goods, or any other document used in the ordinary course of business as proof of the possession or control of goods, or authorizing or purporting to authorize, either by indorsement or by delivery, the possessor of such document to transfer or receive goods thereby represented," shall be deemed to be a document of title within the act; and any agent intrusted with and possessed of any such document, whether immediately from the owner, or obtained by reason of such agent's having been intrusted with the possession of the goods, or of any other document of title thereto" (p), shall be deemed to have been intrusted with the possession of the goods represented by such document of title; and all contracts pledging or giving a lien upon such document shall be deemed to be pledges of and liens upon the goods to which the same relates, and such agent shall be deemed to be possessed of such goods or documents, whether the same shall be in his actual custody or shall be held by any other person subject to his control or on his behalf; and where any loan or advance shall be bonâ fide made to any agent intrusted with and in possession of any such goods or documents, on the faith of any agreement in writing to consign, deposit, transfer, or deliver, such goods or documents, and such goods or documents shall actually be received by the person making such loan or advance without notice that such agent was not authorized to make such pledge or security, every such loan or advance shall be deemed to be loan or advance on the security of such goods or documents within the act, though such goods or documents shall not actually be received by the person making such loan or advance till the period subsequent thereto; and any agreement, whether made direct with such agent, or with any other person on his behalf, shall be deemed an agreement with such agent; and any payment made, whether by money or bills of ex

(0) See Taylor v. Kymer, 3 B. & Ad. 320.

(p) See Close v. Holmes, and Hatfield v. Phillips, ante, p. 816.

change, or other negotiable security, shall be deemed to be an advance within the meaning of the act; and an agent in possession as aforesaid of such goods or documents shall be taken to have been intrusted therewith by the owner, unless the contrary be shown in evidence.

By sect. 5-Nothing is to lessen the civil responsibility of an agent for any breach of duty or contract, or non-fulfilment of his orders or authority in respect of any such agreement, lien, or pledge. Section 7 provides for the redemption of the goods by the owner before sale upon repayment of the lien (both to the defendant and the agent) and restoration of the securities; for his recovery from the pledgee of the balance of the proceeds, after deducting the pledgee's lien; and for the case of the bankruptcy of the agent (q). (9) See the Bankrupt Law Consolidation Act, 12 & 13 Vict. c. 106, s. 179.

CHAPTER XX.

FISHERY.

PAGE

I. Of the Right of Fishery in the Sea, and in the Creeks and Arms thereof, and in Fresh Rivers,

II. Of the different Kinds of Fishery,

Several Fishery

Free Fishery

Common of Fishery

I. Of the Right of Fishery in the Sea, and in the Creeks and Arms thereof, and in fresh Rivers.

822

824

824

825

827

"THE right of fishing in the sea (a), and the creeks and arms thereof, is originally lodged in the crown, in like manner as the right of fishing in a private or inland river is originally lodged in the owner thereof. But although the king is the owner, and, as a consequence of his property hath the primary right of fishing in the sea, or creeks or arms thereof, yet all the king's subjects in England have regularly a liberty of fishing in the sea, and the creeks and arms thereof, as a public common of piscary, and may not, without injury to their right, be restrained of it, unless in such places, creeks, or navigable rivers, where the king, or some particular subject, hath gained a propriety exclusive of that common liberty, either by the king's charter or grant, or by custom_and usage, or prescription." It appears from this passage, that Lord Hale thought an exclusive right of fishery in an arm of the sea might belong to a subject (b). And of this opinion were the Court of B. R. in Carter and another v. Murcot and another, 4 Burr. 2162, where it was decided, that a plea, which prescribed for a several fishery in an arm of the sea, was good; but it was there said, that, as the presumption in such case was in favour of the king and public, it was incumbent on the plaintiff to prove his exclusive right, agreeably to the rule laid down by Lord Hale, in 1 Mod. 105, that if any one will appropriate a privilege to himself, the proof lies on his side. In Ward v. Cresswell, Willes' Rep. 265, and 16 Vin. Abr. 354, tit. Piscary" (B.) S. C., the court held, that all the subjects of

(a) Lord Hale, De Jure Maris, p. 1, c. 4; Hargrave's Tracts, vol. 1, p. 11. See also the case of The Royal Fishery of the Banne, Dav. R. 55.

(b) See also 8 Edw. IV. 19, a.; 4 T R. 439, S. P., admitted by Kenyon, C. J., and Ashhurst, J.

England, of common right, might fish in the sea, it being for the good of the commonwealth, and for the sustenance of the people of the realm, and that therefore a prescription for it, as appurtenant to a particular township, was void, and as absurd as a prescription would be for travelling the king's highway, or for the use of the air as appurtenant to a particular estate. To trespass for fishing in the plaintiff's fishery, defendant pleaded, that the place is an arm of the sea, in which every subject has a right to fish; the plaintiff in his replication claimed an exclusive right by prescription, traversing the general right. It was held, that this was a bad and immaterial traverse, and might be passed over by the defendant, and that it was competent to him to traverse the prescriptive right of the plaintiff stated in the replication (c). The preservation of the spawn, fry, or brood of fish, has been, for centuries, a favourite object of legislation, and the statutes passed for the purpose are extremely numerous; thus dredging for oyster spat in a common navigable river is illegal under the stat. 13 Ric. II. stat. 1, c. 19, which has never been repealed, but frequently recognized (d). In Bagott v. Orr, 2 Bos. & Pul. 472, the court seem to have been of opinion, that primâ facie every subject has a right to take fish found on the sea shore between high and low watermark, but that such general right might be restrained by an exclusive right in an individual.

Fresh rivers, of what kind soever, of common right belong to the owners of the soil adjacent (e); so that the owners of the one side have, of common right, the propriety of the soil, and consequently the right of fishing, usque filum aquæ, and the owners of the other side the right of soil or ownership, and fishing unto the filum aquæ on their side. And if a man be owner of land on both sides, in common presumption he is owner of the whole river and hath the right of fishing according to the extent of his land in length. But special usage may alter that common presumption; for one may have the river, and others the soil adjacent; or one may have the river and soil thereof, and another the free or several fishery in that river. "Where a private river is the boundary of two persons' lands, the soil ad filum aquæ belongs to the owners of the lands on each side ad filum aquæ, unless there have been immemorially acts of ownership exercised by one or the other" (f).

(c) Richardson v. The Mayor, &c. of Orford, 2 H. Bl. 182.

(d) Mayor, &c. of Maldon, v. Woolvet, 12 A. & E. 13.

(e) Ld. Hale, De Jure Maris, p. 1, c. 1; Hargrave's Tracts, vol. 1, p. 5; Davis's

R. 57, a. b. See as to the evidence of ownership of rivers, Jones v. Williams, 2 M. & W. 326.

(f) Per Wilmot, J., Sparks v. Lloyd, Worcester Spring Ass. 1757, MSS.